The legal futility of relying on SCOTUS to abolish abortion

A lot of people, including many lawyers, are misinformed regarding the legal status of abortion in America. Without correct information regarding the Supreme Court’s decisions, pro-life activists are inevitably bound (1) to appear foolish and (2) to fail in their fight for abolition because they have not taken all the facts into consideration. Based on these shortcomings, this short article is intended to demonstrate the futility of mainline, pro-life activism.

A brief history of abortion jurisprudence in America

Most people are shocked to learn that today, Roe v. Wade holds little to no precedential value. In the vernacular, most people talk about abolishing abortion as an effort to “overturn Roe v. Wade.” Perhaps as an analogy, some Southerners refer to all carbonated beverages as “Coke”—sometimes the vernacular can be misleading. During the twenty years that it was the law of the land, Roe v. Wade stood for the proposition that abortion is a constitutional right found in the penumbra of the Constitution (specifically the penumbras of the Ninth and Fourteenth Amendments).[1] Have you ever looked at the moon on a clear night? When the moon is either waxing or waning, you can still see the darkened, shadowy portion of the moon. This shadowy portion is the moon’s “penumbra.” The Court from Roe v. Wade held that abortion was a right found in the “shadowy” portion of the Constitution.

Of course, this interpretation was contrived, and was utter nonsense.

In 1992, pro-life activists were getting excited because the composition of justices on the Supreme Court had almost completely changed since Roe. The constitutionality of abortion was set for a rehearing. With many scholars agreeing that the age of abortion was about to come to an end, Anthony Kennedy and David Souter shocked the country by voting to preserve the legality of abortion in Planned Parenthood v. Casey. The Court from Casey held that states may not place an “undue burden” on women seeking to procure an abortion. In Casey, there were no more penumbras. Thus, today it may be said that overturning Roe v. Wade would be a legal nullity (pointless), given the Court’s alternative approach to legalizing abortion under Planned Parenthood v. Casey. Because Casey explicitly preserved the “essential holding” of Roe, abortion would be abolished by the Court’s decision to overturn Casey, a point which family law professors stress today.

The actual controversy that led to Planned Parenthood v. Casey involved the challenging of a series of Pennsylvania statutes (1) mandating a 24-hour waiting period between informed consent and the performance of an actual abortion; (2) requiring a minor to obtain a guardian’s consent before obtaining an abortion; (3) requiring a married woman to notify her husband before obtaining an abortion; (4) enumerating which situations constitute a “medical emergency” (an emergency would override the requirements from the other sections); and (5) requiring certain reports to be filed after an abortion. Only the portion of the statute requiring a wife to inform[2] her husband was found to be an “undue burden,” and therefore unconstitutional.[3] The result of the Court’s ruling in Casey was that a state could not create an undue burden on a woman’s ability to procure an abortion.[4]

Standards of review

One must always be aware of the various standards of review that the Supreme Court assigns to specific types of rights. When the Supreme Court examines a state statute, the Court employs varying presumptions with respect to the states’ legislative intent. In other words, the Supreme Court asks, “How much discretion did the legislature have to perform this action?” The most permissible standard of review from the state’s perspective is called “rational basis scrutiny.” If rational basis scrutiny is warranted, the Court will typically presume that the legislature had a “rational basis” for creating and enacting the legislation in question. Under “intermediate scrutiny,” however, the state must prove that the challenged statute advances an important government interest through means that are substantially related to that interest. The most stringent level of scrutiny from the states’ perspective is “strict scrutiny,” wherein the state must prove that the challenged statute advances a compelling government interest through the least restrictive means.

In the context of Planned Parenthood v. Casey, the court applied the most lenient, rational basis scrutiny, to Pennsylvania law, thereby affording the legislature the presumption that they had a rational basis for enacting the five challenged statutes.[5] As previously mentioned, only the Pennsylvania statute requiring a wife to certify that she had informed her husband prior to obtaining an abortion was found to be unconstitutional.[6] (Between Casey and the present era, there were two notable cases that will not be discussed here, one of which had the effect of maintaining the legality of the Partial-Birth Abortion Ban Act, and another which upheld the constitutionality of a state statute requiring all abortions to be performed by a physician.)

In the intervening years from Casey until very recently, the Court’s standard of review seemed very lax—until the 2016 case of Whole Woman’s Health v. Hellerstedt. As some will remember, the state of Texas attempted to make it illegal for abortions to be performed in areas not equipped to be an “ambulatory surgical center.” This action had the effect of consolidating and confining the number of operational abortion clinics to six urban areas in Texas. Whereas one could have reasonably anticipated that the Supreme Court would have typically deferred to the state legislatures to make these kinds of “safety” assessments under rational basis scrutiny (the same standard used for the previous cases),[7] the Supreme Court drastically switched standards. It went so far as to weigh the medical evidence available to the legislature.[8] Clarence Thomas noted in dissent that the Court’s action in hearing the available medical evidence illustrated the Court’s shift to applying “something more akin to strict scrutiny” to abortion statutes.[9]

This means that when protecting the alleged “right” to an abortion is in its interest, the Court would arbitrarily switch to whatever standard of review best fit its agenda. Moving forward from Hellerstedt, states in defense of any limitation on abortion would have to show a that the statute advances a compelling government interest through the least restrictive means.

What can we learn from these cases?

What options are left to those hoping to end abortion in America? If anything, a reader will hopefully have a heightened sense of what it means both to answer and not to answer the fool according to his folly on this topic. When pro-life activists appeal to the ambiguities of language from the Supreme Court, it should be expected that the Supreme Court will work (even outside the parameters of their own tests and rules, as Justice Thomas noted in his Hellerstedt dissent) to maintain the legality of abortion in America. Pro-life activists who answer the Supreme Court in the Supreme Court’s preferred way are acting in futility.

In order for abortion to become illegal once again in America, it seems as though there are only a few “viable” solutions. One option involves altering the composition of the Supreme Court. Given the existence of lifetime appointment, however, it does not seem as though this is a probable outcome. Also remember that Republican appointments to the Supreme Court have historically been some of the most vocal and damaging proponents for the legality of abortion.[10]

Perhaps another option could be for Congress to outlaw abortion by statute and limit the appellate jurisdiction of the Supreme Court to hear abortion cases (this is theoretically possible under Article 3, section 2). The Supreme Court, however, would still have original jurisdiction over any matter in which a state is a party, so this would likely also be a nullity.

Lastly, a jurisdiction could extricate itself from the stronghold of the federal system altogether. This seems to be the most certain way that abortion could actually become illegal, although the vicious addiction of state governments to federal funding would reasonably lead one to be pessimistic as to the ability of a state to free itself from irresistible money.

In short, the only promising avenue to abolishing human abortion is for states to outlaw it by statute or state constitutional amendment, and then ignore the Supreme Court when it strikes the state law down. Ignore Roe. Ignore Casey. Ignore Hellerstedt. Ignore SCOTUS. States have a duty to interpose between all wicked tyrannical branches of government and the people, especially the innocent, unborn, the little ones.

[7] Consider that Planned Parenthood v. Casey proscribed “unnecessary” health restrictions, but consider then how under rational basis scrutiny, the Supreme Court would likely defer to a state legislature’s assessment as to which restrictions were “unnecessary.”

[8]See also Gonzales v. Carhart, 550 U.S. 124, 158 (2007) (upholding the Partial-Birth abortion Ban Act, a case to which I previously alluded). The court said, “[w]here it has a rational basis to act, and it does not impose an undue burden, the State may use its regulatory power to regulate abortion procedures, ‘all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn’.” Id.

[10] Harry Blackmun is a prime example. Appointed by Nixon, Blackmun authored the majority opinion in Roe v. Wade, and authored a special concurrence in Planned Parenthood v. Casey. In this special concurrence (which my professor mockingly called the “abortion is the light of the world” concurrence), Blackmun actually compares the abolition of abortion to the extinguishing of a small, flickering flame of hope for women. Also consider the Republican appointment, Anthony Kennedy, a “swing vote” in Planned Parenthood v. Casey.

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About Donald Soles, III

When praying for wisdom on how to shut down a local abortion mill in West Cobb, I heard the Lord say, ” Since abortion is legal, you have to prove it to be illegal”. That is when we contacted an amazing lawyer who started finding every single code violation this mill was committing. It took us 8 months which is unheard of! That’s the wisdom in shutting down these “legal” mills… Prove them to be illegal! It’s easy to do! Here are some things to investigate:

(1) Are all the workers certified with the state?
(2) Since it is a surgical facility are the hall ways wide enough for stretchers?
(3) Is the facility zoned for surgery? ( Needs ambulance access etc…)
(4) Is the ultra-sound tech recognized with the state and has their license expired?
(5) Does the facility provide pain medicine and if so what kind?
(6) Did they do a PGX (Phramacogenic Test) for each patient to see if their liver can metabolize the pain medicine without having an ADR ( adverse drug reaction).

I could go on and on. A personal injury lawyer could offer more ideas I am sure. But that’s the way to do it!

Thomas Hammett

This isn’t from the Lord. It begins with the premise that abortion is okay, as long as it’s done right. Ultimately, you end up with abortion clinics that check all the blocks and have no regulatory deficiencies. If abortion is wrong (and it is) then there is no “right” way to do it.

Phil Alcoceli

Here’s just another article proclaiming with all false solemnity that evil is immutable, unstoppable and inevitable because of all the fabricated, forcefully pushed precedent and all the evil in history. So, according to this and such articles, we must all throw our hands in the air and surrender to our evil and supposedly superior, evil lords.

Civilization has advanced (tragedies, suffering, warts and all) because some decided by their faith in Jesus that evil is neither immutable, unstoppable or inevitable. Accepting such monumental, demonic lie would be placing our faith in evil and, of course, that’s what evil needs for their impressive but very temporary victories. Satan is the Eternal Loser and Jesus the Eternal Winner, come humiliation, torture or death..

Truth_Slinger

It is incumbent upon “we the people” to prove, once and for all, that life begins with the FIRST HEARTBEAT (“the life of the flesh is in the blood” – Lev. 17:11). Roe v Wade ruling was founded upon whether life begins a conception; it’s an “open ended” matter! It doesn’t begin at conception but at the first heartbeat. That’s all we have to prove and Roe v Wade is history.

crushlimbraw

At what point this issue will reach critical mass is hard to say as long as we entangle ourselves in the legal language and interpretation of lawyers. The fact that exists now is that we have been on this path for 200 years – as I learned from a well written piece which I posted in my archive a few days ago.

The whole issue is absurd. The only reason abortions occur in the first place is because the fetus isn’t considered to be a “real” baby. Roe v. Wade occurred because the Supreme Court didn’t recognize a fetus to be a “real” person and, therefore, possessing certain rights. All that is required is for legislatures (both state and federal) to declare the personhood of unborn persons. The hard part comes afterwards. What state is willing to prosecute a doctor for murder and a woman for accessory/comspiracy? If we, as a society, aren’t willing (for example) to prosecute an 18-year-old (or younger) woman, and a boyfriend, and a doctor for murder, then we aren’t really serious about ending abortion.

Bobo Brazil

If we, as a society, aren’t willing to prosecute a distraught young woman and the doctor treating her for murder/manslaughter/criminal negligence when a miscarriage or stillbirth occurs, then we aren’t really serious about declaring the legal personhood of the unborn.

Evermyrtle

Pro-life supporters appear to be foolish, in this beast system, because we fight stupid laws giving permission to murder our babies, that is OK with us because Christianity has always been titled foolish to the non-believers, that is nothing new!! SO BE IT, I WILL REMAIN PRO-LIFE CHRISTIAN, a true believer will never because of the lost world trying to force “baby murder on us with ridicule of any other foolish attempts!!

personhoodco

We have become a lawless nation because we have become a lawless people, self-identified Christians included. Just as the newly freed Israelites learned, we Americans have found freedom to be hard, we love our licentious behavior more than we love our God. If abortion was criminalized today (meaning that there is a penalty for breaking the law of murder) we would ignore the penalty faze, or vote to abolish the abolition of abortion, tomorrow.

sonny

Leaving the union is the best option. The beast system we live in is beyond repair. Sadly, if this beast system were replaced… a worse beast would arise because the pastors do not teach the people how to apply the Bible to civil government. The Christian people are ignorant and deserve every bit of judgment God has for them. “My people perish for lack of knowledge”. The articles of confederation are just one of the four organic laws of this country that is still valid or it wouldn’t be listed in front of the United States Code. Christians need to get rid of the United States Citizenship nexus and be Americans who are free inhabitants on the land. You can learn more about how to do that through Ed Rivera’s material and sedm.org. It’s much easier just to be a slave, but God compels us to more… so study and teach.

Evermyrtle

Christians, I mean “real Christians” will not, I mean, we will refuse to follow this evil system that we have today, we will follow GOD, just as near as possible, not allowing weak, join’em’ idiots to change us. We sill stand strong in GOD and HIS WORD!

That is your choice, not ours, however you may want to “dress it up”, it will not hold water, we cannot live with HIM and follow the world! True Christians are not only slaves, we strive every day to make changes against evil works and worship that is evil!! GOD is not the one who will give in, HE made HIS laws and we accept or refuse but we do not change them, except for evil!! Of course if we will repent, HE will forgive!

sonny

Sadly, most Christians and churches are submitting to this evil system through 501c3 incorporation of the church. The lawyers have beguiled us into trading our rights for security. The incorporated church has agreed to obey any law that the state changes or makes….pretty dumb isn’t it? This clause is in every state code (ch 13 in GA I think… I can look it up if you really need it) Needless to say Christians have been deceived in so many ways it’s not even funny. We should leave the beast system and it can be done

Darrell Birkey

501c3 only stops you if you let it. The worst they can do is take away your 501c3 if you speak and act freely.

sonny

It’s a binding agreement to submit the church to the authority and jurisdiction of the state… to become a franchise of the state and serve the state’s purposes.
If you enter into an agreement with no intention of keeping it then you are being deceptive at best.
Church elders are most always officers. The state has the authority, and process to remove elders and replace them to achieve desired goals. The government can issue fines retroactively and assets of 501c3 must be transferred to another 501c3 upon dissolution/un incorporation (Trojan horse).
“Non profits” are subsidized by the govt according to SCOTUS ruling in Bob Jones case and the govt gives Planned Parenthood over 500 million dollars per year to kill a baby every 90 seconds. Incorporated churches are subsidized by the largest murderer of babies I know of and these same churches have submitted themselves unnecessarily under the authority of this wicked govt.

tionico

don’t know what your source of informatin is, but the state government DOES NOT have any authority legally or otherwise ti step in and manage any church or siilar organisation.

You said:

The incorporated church has agreed to obey any law that the state changes or makes..

absolutely not true. there is nothing in the corporation papers that makes this so. I own a corporation, and the onlu laws in this state I MUST follow are the same ones I’d have to follow if I did not have the corporation.

sonny

My source of information is the Georgia code. I haven’t met a pastor or elder yet who has read it. Your articles of incorporation don’t take precedence over the Georgia Code. Hale v Henkel clearly states that corporations are created by the STATE and the pot does not talk back to the potter/master… the STATE of GEORGIA.

Darrell Birkey

We choose to do right and risk the consequences… regardless of what a court says.
As i said before the IRS code does not silence us unless we let it.
As far as the Georgia code goes… we don’t live in Georgia.

sonny

The problem is you have not chosen to do right. You have chosen either to submit yourself to the wicked jurisdiction and oversight of the STATE, or you have continued to remain in subjugation to a wicked master. You have compromised the headship of Jesus Christ through incorporation. There is no law requiring incorporation of churches. You chose to put yourself there. You have agreed to obey all the laws of the STATE by agreement and then you prance like a peacock and say you are going to “obey God rather than men”. This same state you agreed to obey is the same state that says you may not engage in propaganda, must not discriminate against homosexuals in hiring, gives 500 million dollars per year to Planned Parenthood to kill a baby every 90 seconds, engages in Satanic rituals and experimentation for military advantage, has experimented on the American people over 300 times with harmful/deadly poisons and gases, has placed the military under UN control, on and on it goes and you say you choose to do right. I don’t think so. And you have agreed to submit yourself to what “the court says” through incorporation under the state.
Again, it doesn’t matter if you live in Georgia. I can tell you haven’t read the code in your state. Your state is a corporation under the federal corporation and your code will contain the same information except for some trivial matters.

Darrell Birkey

“Church elders are most always officers. The state has the authority, and process to remove elders and replace them to achieve desired goals. ”

This is false. We say what we want to and don’t fear government reprisals. They can harm us but they can’t silence us.

sonny

No, It’s true. I’ve read the code and the codes are uniform between every state except for some minor issues because the state won’t get federal money without aligning their code with federal requirements. Have you read the corporate code in your STATE? I have never met a pastor or elder yet who has… yet….and I’ve talked to a bunch of them about this. If not, then you have entered into an agreement where you have not read the whole
contract/agreement. Every financial guru has a special rebuke for someone who assumes or signs an agreement without reading it. At best, it is “not wise”.
You are like the man who walks into the Lions cage every day and says ” I am not afraid. I do this every day and nothing happens.” You have brought the devil’s “trojan horse” into the church and don’t even know it, and you sit pridefully on top of the trojan horse touting your accolades. The trap is set, and God is the only one holding Satan back from unleashing vast ruin, persecution, and confiscation of assets. The church today is like the Israelites in Joshua 9 who did not consult God before entering into an agreement.
Most pastors have already been silenced. See http://hushmoney.org/501c3-facts.htm.
You are the man who enters an agreement to take any perceived benefits but who has no intention to honor it. It’s truly dishonorable and brings the sin upon all the people under your leadership.

Darrell Birkey

Leaving the union is not an option at all unless you actually mean move out of the country. There simply aren’t enough people in any state who would agree to secede.

sonny

It is an option. Most people don’t want to put in the work to make it happen. You would have to study and learn how to before one could assess how easy it is to accomplish. I don’t accept your argument and neither do communists. The communists have been working for over 100 years to take over the education system and brainwash/train the masses to be good little communists. The communist manifesto is almost a reality. The problem with Christian leaders and laity today is that they are so short sighted and barely plan beyond a year, so it is no surprise to hear someone say it is not an option. With God … nothing is impossible.

Darrell Birkey

There is no Godly principle involved in seceding. Of course if the people won’t do it, it’s not an option. Also the is not reason that the seceded entity would be better than the original one, since the majority will still be evil.
I am a Christian leader. It’s much better to invest ourselves in fighting for laws to ban abortion rather than to waste our time on vain pursuits like secession which has not ultimate more basis.
We have been fighting the fight to have unborn babies recognizes as persons under the law. Only then can we stop abortion.

sonny

Since you are a leader, you should be mature enough accept rebuke and like it. You err…greatly.
Secession is removing oneself from a jurisdiction or affiliation. Using your logic and reasoning, the Protestants did not have a Godly principle to leave and should not have left the Roman Catholic Beast-church, and the “Pilgrims” should not have left England. The “Godly principle” that you fail to see is “love”. All the law is derived from two commands or “Godly principles” which are Love God and Love your neighbor. If you love your neighbor, then you will protect his life and property (through justice) and hold offenders accountable. Protecting life and property sometimes requires leaving the jurisdiction of the threat.
Second sentence…let’s try to apply your reasoning again. If children don’t want to eat vegetables, then it’s not an option. Anyone can see that your reasoning doesn’t work because the people just need some motivation (positive or negative). It is an option. Just because you don’t recognize it doesn’t mean it’s not there.
Third sentence… “Also the is not reason” …just imagine what Joel would say about that. (you left that one hanging there for some real “smack”, but I’m trying to be gentle) Leaving a jurisdiction can be done personally or collectively. In law, no one can be compelled to contract or agree, so everyone who remains under federal jurisdiction, does so voluntarily.
Fifth sentence…Fighting against abortion is noble and admirable. How you fight is another story. Even if you get your news from CNN, you should know that approach is a waste of time since every STATE that tries gets overturned on appeal or injunction. Are you saying that it would be better to stay in a jurisdiction where there is not remedy for murdering unborn infants? This system has been hijacked by attorneys and you are trying to legally out maneuver the devil’s advocates with a top-down approach.
Sixth sentence… Your fight is a complete waste of time because you don’t know the law, its rules or how to fight it, so you keep getting abused by the government. This legal system uses “word art”. It’s a different language that has different meanings than the English vernacular for the purpose of deception. You will never get unborn babies recognized as legal “persons” because you don’t know what a legal person is. A legal person is a fictional entity like a corporation, partnership, individual, etc… A legal individual is not a human…. it’s a legal fiction. Legal fictions and humans cannot interact, communicate or contract so humans have to create a legal fiction to interact with other legal fictions in the “federal zone”. Under maritime law there must be a “birth” before a “bill of lading” or “certificate of live birth” can be issued by the STATE. Once you get a “certificate of live birth” then you have a legal person. Their system has many glitches and faults which should cause alarm, but most people just ignore them and continue in their “daze”….without asking questions. Plato’s cave is alive and well and the modern day analogy would be the “matrix” movie. Cognitive dissonance is a problem along with pride which causes people to ignore the obvious so they will appear to be “right”. The Emperor has no clothes and hopefully more and more people will be called to repentance and have their eyes opened to the spiritual and legal reality. Your current journey/fight against abortion can be better compared to the Israelites wandering in the desert. Canaan is within reach, but the hearts of the people are not right so God leads them around the desert until they repent or die. My people perish for lack of knowledge unless God mercifully plucks them out of the misery of their own idolatrous sin.
To begin learning (If you want the responsibility of liberty), start with sedm.org. It is exhaustive and uses many Scriptural principles in its explanations. If you want to just be a slave, then resign as leader and ask for forgiveness because God will punish you for misleading His little ones. All men are called to love their God and neighbor and we are all responsible to know how to apply love to every situation including government. In Luke, the servant who doesn’t know he is sinning deserves a beating, and the servant who knows he is sinning deserves a severe beating. What you do tomorrow determines whether you deserve a beating or a severe beating.

SouthernPatriot

States are addicted to the teats of federal taxpayer money doled out by scheming politicians to gain further control over states and local governments. The Department of Education can be seen as a case in point.

One state may have the natural resources and independent spirit to have any chance and motivation to go secede from the union, and from its history as an independent country, it may be the first to be one again–Texas. Other states may be emboldened if Texas were to take that step and follow with trade and mutual agreements with Texas.

sonny

The states have been weakened to the point that they could not make it on their own. It would take another confederacy of states. The public schools are teaching Christian children to be socialists as well as all the other kids, so as time passes, it will become more difficult to have enough popular support behind a confederacy. More and more people are dependent upon the government than ever and they look to the government to provide. It will take repentance of the church and a miracle from God.